Hashimpura massacre trial after 19 years-- Failure of all organs of state

The trial of the accused personnel of the Provincial Armed Constabulary (PAC) charged with the cold blooded murder of about forty Muslims of Hashimpura, Meerut on 22 May 1987 has taken more than 19 years to haltingly start in the Tees Hazari Court, Delhi on July 15 2006. It is not only a case of proverbial judicial delay, but crookedness of the course of law that deserves critical scrutiny to be able to understand how the system has given rise to a climate of impunity, especially in heinous hate crimes against vulnerable groups, which emboldens the criminals including those in official uniforms and causes frustration among victims, who lose hope in the system.

According to the order of 18 May 2006 by the Court of the Additional Sessions Judge, Delhi, N P Kaushik it is the prosecution’s case based on the inquiry report of the Crime Branch of the CID (CBCID), that curfew was clamped in Mohalla Hashimpura of Meerut city in the name of search for illegal arms and 644 persons (all Muslims) were randomly picked up from their homes and were arrested. Of these 644, forty two (mostly younger ones) were directly taken in a PAC truck to Upper Ganga Canal, Murad Nagar, where some were shot at and the bodies were thrown into the canal and the remaining were taken to Hindon river, where similar operation was done. Though all were taken as dead, a few survived. FIR was lodged on the basis of their statements on 22/23 May 1987.A few days later dead bodies were found floating in the canals -- sending shock waves worldwide.

The ghastly incident had stirred the conscience of the nation, as the outrage it caused in the average citizen was more than that felt against terrorist violence, as the killers in this case were those who were supposed to be protectors. Nikhil Chakravarty compared the event with “Nazi pogrom against the Jews, to strike terror and nothing but terror in the whole minority community”. Mr Subramaniam Swamy, who went on fast unto death over the incident, characterized it as a clear case of genocide. Mr Chandra Shekhar made the observation that “the Hashimpura (Meerut) tragedy was the most shocking incident in my political life…”

Nirmal Mukarji observed that “the truth is that Hashimpura and Malliana affected the Muslim psyche as nothing else had since independence, for the community began to see itself as under attack by the state itself. The least that should have been done was to have promptly disbanded this particular unit of the PAC and to have cashiered its officers. But no action was taken. The outcome was that, far from being on the side of the angels, the UP police emerged as the devil itself ”.

In a joint statement, eminent persons including I.K Gujral, Rajindar Sachar, Kuldip Nayar, Subhadra Joshi and Badr-Ud-Din Tyabji demanded that “the government must prosecute all those members of the PAC and police who have disgraced their uniforms. Their misdeeds must be treated at par with treason and tried by special courts”.

The letter that was sent by the team of inquiry led by Justice Rajindar Sachar to the Chief Minister, Uttar Pradesh and Prime Minister Rajiv Gandhi, along with the report, was not even acknowledged. Even though the Prime Minister was convinced about the veracity of the case by the testimony of one of the survivors, Zulfiqar Nasir, who was produced before him, and wanted to initiate effective action, he was advised not to do any thing, which could undermine the morale of the armed police, which were, in their view, the main prop of the state’s authority.

When the pressure on the government increased, the Chief Minister B.B Singh instituted an inquiry into the incident by CBCID. By the time the inquiry report was submitted after seven long years in February 1994,the incident had become a forgotten massacre, like a bad dream, by not only the political class but also by all segments of the civil society. People’s Union for Democratic Rights (PUDR) had filed a writ petition in the Supreme Court in 1987 for investigation of the case and damages to the victims, which was routinely dealt with and disposed of on 12 September 1990,enhancing the rehabilitation - compensation from Rs 20,000/- fixed by UP Government to Rs 40,000/-, though with the provision that “ if any one has applied for claim for compensation for death or bodily injuries, our direction for payment of rehabilitation compensation does not intend to affect such claim and same would be available to be proceeded in accordance with law”

After the submission of the CBCID report, some of the victims of Hashimpura, who were left to fend for themselves, filed a writ petition in the Supreme Court in February 1995 for making the report public, prosecution of all the indicted persons and payment of adequate compensation to the victims. The Supreme Court did not consider it a fit case for admission under Article 32, and directed the petitioners to approach the High Court, in spite of the fact that the drafting history of the Article shows that the provision was made to ensure that in the event of clear violation of any fundamental right a citizen could seek remedy directly from the apex court. It could have easily settled the issue of adequate compensation, which it had kept open in 1990, in the light of its own liberal rulings on the issue. Subsequently Jalaluddin and others of Meerut filed a writ petition in the Lucknow Bench of the Allahabad High Court on 15 Feburary 1995 with the same prayer.

Though the CBCID had indicted more than sixty PAC and police personnel of all ranks, the Government of UP gave permission for prosecution of only 19 of them, all of lower ranks. What disciplinary departmental action was taken against others has not been made public. On the contrary many of them are enjoying promotion.

How successive governments led by the Congress, SP, BSP and the BJP from 1987 till date seem to be determined to deny adequate compensation to the victims and seem not to be keen on punishment of the guilty, is obvious from the record of the cases at Lucknow and Ghaziabad and subsequently from September 2002 at Tees Hazari, Delhi.

On the issue of compensation, the UP Government’s counter-affidavit says that in compliance with the Supreme Court’s order it had paid Rs 40,000/- and the issue was therefore closed, which is in utter disregard of the clear direction of the Court on the matter. The case is still lying in the High Court at Lucknow in a state of neglect.

Even statutory resolution of the National Commission for Minorities (NCM) for enhancement of compensation in October 1999 and firm assurances given by the Chief Secretary of UP in May 2000 to the NCM to review the case, has not yielded any result so far. It must be kept in view that Hashimpura is not a case of police-firing during riots, but a case of custodial terrorist killing, with hate motive by the states’s forces against innocent citizens on the ground of their religious affiliations, worse than Best Bakery and other cases in Gujarat, where in spite of states’ complicity the police did not pick up Muslims from their homes and killed them; nor did it happen in anti-Sikh pogrom of 1984.

II

Though the UP Government filed charge sheet against 19 PAC men in the court of CJM, Ghaziabad on 20 May, 1996 under sections related to murder, attempt to murder, conspiracy and concealment of evidence, how serious it was for successful prosecution is obvious from the fact that in spite of CJM court’s summoning order followed by bailable and non-bailable warrants 23 times between January 1997 and April 2000 the accused PAC men, who were in active service and whose residential and posting addresses were there in the file, were never produced before the court.

I had started appealing to minority and human rights groups since 1995 to intervene in the case or provide necessary assistance to the petitioners, so that “successful conviction of the PAC personnel sends the message that law is still supreme in the country.” However by 1999 I realized that the local petitioners did not have adequate legal resources and no assistance was being made available to them. I personally visited Meerut and Ghaziabad in May 1999 to collect papers related to the case: Subsequently in a meeting convened by the Minorities Council on July 9, 1999 a decision was taken that the Council in cooperation with other organizations willing to lend support, including PUCL, would pursue the cases in the Lucknow High Court, and Ghaziabad CJM’s Court.

I also published an article under the title ‘Forgotten Massacres, on Hashimpura case from 1987 till August 1999’ in the Autumn 1999 issue of the Quarterly IOS Bulletin Human Rights Today that I edit, which made some impact and led to Siddharth Varadarajan taking interest in the case, who published front page story in The Times of India of May 17, 2000 on the bizarre proceedings in the CJM Ghaziabad Court. That was the time when on our representation, the National Commission for Minorities (NCM) impressed upon the Union Home Minister and the Government of UP to take early measures for payment of adequate compensation and speedy trial. This pressure from the Minorities Council, the NCM and The Times of India seems to have forced the UP government to realize that it could no longer shield the guilty PAC men. As a consequence of this pressure, 16 of the 19 accused PAC men surrendered in groups in the last week of May 2000 and early June 2000. One accused was absconding, another was reportedly dead. They were refused bail by CJM, Ghaziabad. However they were allowed bail by the District Judge on the ground that there was no direct evidence against them and that being members of the PAC there was no chance of their absconding.

Apparently their practically being absconders from January 1997 to May 2000 did not weigh with the learned court while easily allowing bail to all 16 in groups on June 2, 2000 (Bail Application No. 1353/2000), June 5, 2000 (No. 1412/2000), June 27, 2000 (No 1564/2000) and July 4, 2000 (No. 1620/2000).

The entire sequence of legal proceedings since the submission of CBCID report in February 1994 till date has been rightly summed up by Siddharth Varadarajan of The Times of India in the following words, “Even by the lethargic and Kafkaesque standards of the Indian judicial system, the Hashimpura case is in a class of its own” (TOI, May 17, 2000). From the analysis of the order sheet from May 1996 to June 2000 at CJM court Ghaziabad it was obvious that there was collusion between the prosecution and the accused, which made this writer, who has been helping the victims in the case on behalf of the Minorities Council, apply to the Supreme Court for transfer of the case from UP to Delhi, which it did in September 2002, in the interest of justice. [It needs to be recorded that since May 1999 it was under legal guidance of Justice R S Narula (then President of Minorities Council) and Justice Rajindar Sachar that I was all along pursuing the case with some success. Advocate Sanjay Parekh, a member of this team, helped prepare and file the application for transfer of the case in Dec. 2001, which was argued personally by Justice Rajindar Sachar before learned bench of the Supreme Court, which ordered the transfer of the case. Again it was under the advice of Justice Sachar that I approach Mrs. Vrinda Grover for regular legal assistance in the case at Tees Hazari court, which she has been doing with diligence and dedication.]

However, after transfer in September 2002, not much progress could be made in the case for lack of timely appointment of a team of competent and independent PPs and SPP, who could do justice to the case; part of the reason lying in the lack of clarity about the appointing authority in such transferred cases. As along with the Supreme Court’s order transferring the case from Ghaziabad (U.P) to Delhi, there was no direction on the appointment of SPP, as was done in the Best Bakery case. Initially the Delhi Court as well as the complainants took the view that it was for the Government of Delhi Administration to appoint the PP/ SPP. Later the Additional Sessions Judge, Tees Hazari issued notice to the Government of U.P expressing concern at the delay in appointing the SPP.

Later the long-awaited U.P Government’s appointee was found to be technically unqualified. Subsequently the Government appointed an SPP, but the case continued to be adjourned on various technical grounds, as well as owing to strike by lawyers of the Tees Hazari court, which continued for months. At long last the Additional Sessions Judge Sh. N.P Kaushik passed orders on 18/24 May 2006 for framing of charges against the accused and fixed 15 July 2006 as the date for the evidence of witnesses. On the date, when the survivor eyewitness Zulfiqar Nasir came prepared to give evidence, the SPP Shri. Adhlakha expressed inability to produce before the court the ‘Property of the Case’ including the rifles and some necessary documents required under law. Taking a serious view of such deliberate slowing of the trial, the Hon’ble court issued notice to the Chief Secretary and other concerned officials and summoned the Additional SP (CBCID) Meerut, Ms. Bharti Singh to explain the reason for non-production of the rifles etc and fixed 22 July as the next date of hearing.

On 22 July the sensational disclosure was made that the rifles used in the case, had been redistributed. Admitting this fact Ms. Bharti Singh gave the assurance that she would submit to the Court the information on how and under whose orders the rifles were redistributed. Noting this, the Court recorded the detailed deposition of the first witness Zulfiqar Nasir - who gave graphic description of the ghastly incidents of 22 May—when he was shot at and taken as dead.

How serious is the Government of Uttar Pradesh in effectively pursuing proper prosecution is obvious from the fact that on the next date of hearing of the case i.e. 31st July, Adhlakha was absent, incurring a fine of rupees five thousand against the State Government. On 8 August 2006 the rifles were deposited with the Court and deposition of Zulfiqar Nasir continued. The list of witness being long, it will take quite some time to complete it.

The role of the Samajwadi Party Government led by Mulayam Singh Yadav, who is supposed to be favourably inclined to Muslims, has lately come in for severe criticism in the sections of media, and by political groups, some of which are motivated by calculations in the ongoing electoral game in the State, but it cannot be denied that even Mulayam Singh Yadav and his Muslim supporters including his Muslim ministers can take credit only for sanctioning approval for prosecution of the 19 PAC personnel of the lower rank. They have done just absolutely noting more. Concern for getting justice done in the case has been totally missing, from Rajiv Gandhi – Bir Bahadur Singh to the present incumbents and their predecessors at Lucknow and Delhi.

III

The issues that arise from criminal neglect of the case by successive governments and the apparent apathy of the civil society including human rights groups, need to be raised and discussed in the larger institutional and political perspective of the failure of all the organs of the State to deliver justice to victims and punish the guilty. In his report on 1982 Meerut riots NC Saxena, the then Joint Secretary NCM, had written that “…In many places the PAC behaved like a mob and committed atrocities” and made a significant observation that “the district administration perceived threat to public peace only from Muslims… the order from the senior officers in the district to the police could be summarized in one phrase: ‘Muslims must be taught a lesson’ the PAC and the Police faithfully implemented this policy”. The result was deliberate killing of Muslims trapped in Feroze Building. But all that was done by the secular class, Gandhians and human right groups was to raise the level of rhetoric.

The guilty were allowed to enjoy impunity. Such deliberate targeted killing of Muslims by the PAC started in Aligarh in 1978 and has continued till 5 April 2006 when four Muslim youth were killed by police firing, unwarranted by the situation. It is this climate of impunity which made the senior district officials of Meerut—may be with active or passive connivance of the political executive at Lucknow—decide to teach Muslims a bloodier lesson than was done in 1982.

In the name of ‘operation search’ the most brazen killing against Muslims in Independent India was performed by State’s armed constabulary—the PAC, which was characterized by the Amnesty International in its report on Meerut, 1987, as a Hindu paramilitary force in numerical terms (only about 2% of the PAC being Muslims) as well as in terms of attitudes. Subramaniam Swamy undertook fast unto death against the crime of genocide in Hashimpura,

which the honourable politician broke when a team led by Justice V.M Tarkunde offered him a glass of juice—with the implied assurance that the issue of genocide that he had raised will be addressed. Was any step taken in that direction? It is lack of accountability of the district administration and police/ paramilitary forces and their political mentors for such crimes against humanity that made them play blatantly partisan role during most situations of communal conflicts during decades of 1980s and 1990s, which led to Gujarat 2002. In the Bill 2005 on communal violence there is continuing glaring absence of any such provision for accountability of those who wield power.

Even in the absence of any law on the crime of genocide, in the light of existing Constitutional-legal provisions, the Government of BB Singh should have been dismissed and under President’s rule, there should have been disbanding of the specific unit of the PAC and all concerned District officials and the Police-PAC personnel of all ranks should have been tried under a special Tribunal constituted for the purpose.

The most distressing aspect of the case is the lack of provision of adequate compensation for loss of life and limb caused by the State’s agents—State’s liability to pay such compensation is settled in India. However, till date no law on rights of victims has been enacted, in spite of the NCM’s persistent demand since 1980 and recommendations of several bodies, including Justice Malimath Committee.

The apex court has not covered itself with glory by routinely disposing of in 1990 the case on Hashimpura filed by PUDR in 1987 and again by missing the opportunity of playing a proactive role when a writ was filed by the aggrieved Jalaluddin and others in 1995. Why did the sections of political class and civil society, including human rights groups allow such delay and denial of justice in the case?

It requires some introspection and action now with clarity and vigour, including a concerted non-partisan demand for NHRC-NCM approaching the Supreme Court for direction for appointment of amicus curiae and guidelines for appointment of PP-SPP, and most urgently for payment jointly by the Central Government and the State Government of adequate compensation of at least rupees five lakhs plus interest—as it was not a case of killing by police firing in the street during riots. But a case of cold-blooded murder with hate communal motive by State forces.